Citation Nr: 0723758
Decision Date: 08/01/07 Archive Date: 08/15/07
DOCKET NO. 06-12 570 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in North
Little Rock, Arkansas
THE ISSUE
Entitlement to service connection for hearing loss.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. J. Kunz, Counsel
INTRODUCTION
The veteran served on active duty from June 1954 to June
1957.
This appeal comes before the Board of Veterans' Appeals
(Board) from a July 2005 rating decision by a Regional Office
(RO) of the United States Department of Veterans Affairs
(VA). In that decision, the RO denied service connection for
hearing loss.
In March 2007, the veteran testified at a Board
videoconference hearing. At the hearing, the veteran
appeared to raise a claim for service connection for
tinnitus. That claim has not yet been addressed by the RO,
and it is referred to the RO for appropriate action.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The veteran claims that he served as a gunner in field
artillery, and was exposed to considerable noise from those
weapons. He further claims that he has noticed trouble
hearing since separation from service, and he contends that
he has hearing loss as a result of the artillery noise
exposure during service.
The veteran's service records are presumed to have been
destroyed in a fire that occurred in July 1973 at the
National Personnel Records Center (NPRC) in St. Louis,
Missouri. The United States Court of Appeals for Veterans
Claims (Court) has indicated that when a veteran's records
are presumed destroyed, the Board has a heightened obligation
to explain its findings and conclusions, and to consider
carefully the requirement that the benefit of the doubt be
resolved in favor
of the claimant. See O'Hare v. Derwinski, 1 Vet. App. 365,
367 (1991); Gregory v. Brown, 8 Vet. App. 563, 570 (1996).
In a July 2005 statement, the veteran wrote that VA had given
him hearing aids about a year and a half earlier. It does
not appear that these VA records have been associated with
the claims file. However, the Board is nevertheless charged
with constructive knowledge of such records and action to
obtain those records is necessary before the Board may
proceed with appellate review. See generally Bell v.
Derwinski, 2 Vet. App. 611 (1992).
Although a search for service medical/dental records was
unsuccessful, it does not appear that there has been a
request for the veteran's personnel records. In view of his
specific contentions regarding his duties during service, the
Board believes a search for personnel records should be
accomplished.
Finally, the Board also finds that a VA audiological
examination with opinion would be appropriate in this case.
Accordingly, the case is REMANDED for the following actions:
1. The RO should make an appropriate
request for the veteran's service
personnel records.
2. The RO should ascertain which VA
medical facility supplied him with hearing
aids and obtain all VA medical records
associated with any testing for hearing
loss in approximately 2004.
3. After completion of the above actions,
the RO should schedule the veteran for a
VA audiological examination. It is
imperative that the claims file be made
available to the examiner for review in
connection with the examination. The
examiner should be asked to express an
opinion as to whether the type and pattern
of any hearing loss is consistent with the
claimed noise exposure during service in
the 1950s. If so, the examiner should
offer an opinion as to whether it is at
least as likely as not (a 50% or higher
degree of probability) that any current
hearing loss is causally related to the
veteran's service.
4. After completion of the above, the RO
should review the expanded record and
determine if the veteran's claim can be
granted. If the claim remains denied, the
RO should issue a supplemental statement
of the case and afford the veteran an
opportunity to respond. Thereafter, the
case should be returned to the Board for
appellate review.
The Board intimates no opinion as to the ultimate outcome of
this case. The veteran has the right to submit additional
evidence and argument on the matter that the Board has
remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
_________________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).